The Company Court of Alicante, Nº 1, made, in its judgment dated July 20th, 2012, a useful analysis on the different decisions part of the case law in regards to the recognition of pledgesof future receivables and their classification as privileged credit in cases of bankruptcy proceedings, being a very commonly practiced consideration.
According to the Insolvency Act, these loans secured by a pledge entered in a public deed are specially privileged over the property or rights in the possession of the creditor or a third party. In case of credit pledge, in order to be assigned with privileges on the credits transferred as guarantee, it is sufficient to record in any authoritative document which shall be dated faithful. While the pledge for future loans only confers special privileges to claims arising before declarations of insolvency; the same applies for the claims arising thereafter when appropriate to their discharge or when the pledge was entered in a public register prior to the declaration of insolvency.
The analysis of the mentioned recognition occurs as a result of the case decision in which the Hércules Fútbol Club, S.A.D., entered a nonpossessory security right in a public deed in which certain credit rights were included as a guarantee of two installment payments to be afforded by such intuition to the State Tax Administration Agency. The mentioned deed of pledge was then registered in the Land Registry Office of Alicante, thus such commercial activity was included in the bankruptcy proceedings after the pledge was constituted.
Once the pledge of future receivables is validated, it is necessary to determine its place among the other creditors according to the date in which the obligation was created. The pledge will then reach all the credits that might arise until the declaration of bankruptcy proceedings.
The problem is to determine the procedure to be applied to those which might arise after the declaration of bankruptcy, depending on whether these arise from the debtor in bankruptcy proceedings as an asset that is integrated freely in the estate and accordingly the pledgee has no privilege over them, otherwise, they are part of the pledge, and therefore, the recipient of these assets shall be the pledgee.
In case the pledger is insolvent, conflict of interests occurs in respect to the pledged receivables that might arise after the starting date of the insolvency proceeding. On one side, we shall mention the expectations of the secured creditor and on the other side, the interests of the remaining creditors, which may find a reduction in the active estate included in the bankruptcy proceedings for the benefit of the secured creditor holding the pledge for future eceivables, without having any kind of postconcursal financing.
There legal doctrine differs on this matter, distinguishing in the first place the positions of those who consider that the pledge of credit is always immune to insolvency proceedings being just required that the credits are determinable.
A second point of view, considers that if the contract sources of future receivables wereentered before the date in which the bankruptcy proceedings started, although they might had been generated later on, these shall be distinguishing between simple future loans and purely prospective future loans, only the former being enforceable within the insolvency proceeding whereas the later would be integrated into the bankruptcy estate without enjoying privilege.
A third position requires that in order for the pledge of future receivables to be effective against third parties in the insolvency proceeding, the obligation shall have been entered before the declaration of insolvency. Lastly, we find out the 4th position of those who advocate the analogous application of Additional Disposition Nº 3 of Act 1/1999 on the regulation of Capital Risk Entities and their Management Companies, making enforceable those credit instruments that arise from business activity carried out by the pledger within one year from the date in which the guarantee was granted, despite these arise after the declaration of bankruptcy proceedings.
The decision we analyze now strictly follows the thesis of the the third position, understanding that the pledge only reaches those claims that arise before the declaration of insolvency; because otherwise, it would prevent expectation of recovery to a large number of creditors. Additionally, this is the purpose of the reform of the Insolvency Act in which the reference must be the date of the creation of the loan and not that of the conclusion of the contract from which the credit is derived from.
Accordingly to this position, the claim filed by the AEAT is partly considered as recognizing the privilege of the credit created and matured before the bankruptcy declaration.